Protect Your Freedom and Fortune by Executing a Durable Power of Attorney

Nashville, TN (Law Firm Newswire) June 29, 2012 - For Americans, getting behind the wheel and turning the ignition is the ultimate freedom. Our cars symbolize our independence and allow us to go where we want, when we want. It’s tough to give up those freedoms. If you’ve had to confront an aging loved one and demand their keys, you understand this emotional and practical problem. This article focuses on maintaining control over your life for as long as possible by executing a durable power of attorney.

Matt Potempa

Why do I need a durable power of attorney?
• To make long term care decisions.
• To make medical decisions.
• To manage monthly living expenses and pay bills.
• To invest money.
• To hire nursing or personal care.
• To collect pension, retirement and social security.

These questions are not just for the elderly, the future is uncertain for anyone.

Many folks do not have a power of attorney when they need one. When this happens a probate court may appoint a conservator or guardian to make healthcare and/or financial decisions for you. Conservatorships require court hearings. Court hearings require lawyers. And lawyers require money. Besides being expensive, conservatorships are public and often pit loved ones against each other. A contested conservatorship can get as nasty as any contentious divorce. Fingers are pointed and motives are questioned. Such a proceeding can tear a family apart. And worst of all, you lose control to decide who will act in your best interest. The solution is simple and inexpensive – execute a durable power of attorney. It may be the single most important legal document you can have.

What is a durable power of attorney?
Adults over the age of 18 are presumed to have “power of attorney” for themselves. Power of attorney is basically the ability to make decisions for yourself – to execute contracts, buy and sell things, move money around and so forth. Once a person becomes incapacitated, incompetent or disabled, this power may be called into question.

A power of attorney is “durable” when it allows someone (your “attorney in fact”) to take legal action on your behalf even after you become incapacitated or disabled.

Lawyers like to throw around ten-dollar words. What does “incapacitated” or “incompetent” really mean? Who decides when you are unable to make decisions for yourself? Well, this is the most important reason to have a durable power of attorney in place – you make the choice. Your power of attorney can become effective upon signing or upon a doctor’s determination of incapacity.

Your capacity may be called into question under the terms of your durable power of attorney or by a conservatorship action brought by someone who knows you. In either case, a judge may be charged with determining whether you are competent. Essentially, the court will ask the following questions:

1.Is there a disabling condition, such as a coma, mental disorder, dementia or chronic use of drugs?

2.Is there an inability to receive or evaluate information or to make or communicate decisions?

3. Is there an inability to meet essential requirements of health, safety or self-care without protective intervention?

Answers to these questions are often not black and white and different evidence may be considered, including testimony of your doctors, friends and family. Most people do not realize when they are disabled and will fight to keep their liberty.

For those who execute a springing durable power of attorney (one that is effective upon incapacity) I would ask “if you don’t trust your attorney in fact now, why trust them when you are most vulnerable?” Legally, a power of attorney is duty-bound to act in good faith, but without supervision it can be a license to steal.

It is not required that an estate planning lawyer draft your power of attorney. It can be handwritten, purchased off the internet or at your local office supply store, but do so at your own peril. Legal counsel can efficiently provide you peace of mind to prepare you and your family with clear direction when you no longer have capacity to decide for yourself. Without a valid, up-to-date durable power of attorney, you jeopardize your money, your family, and your freedom.

Matt Potempa is the founding principal of the Law Office of Matt Potempa, PLLC, a full-service law practice located in downtown Nashville. Nashville lawyer, Matt Potempa can be reached at [email protected], 615-255-5007 or online at www.potempafirm.com.